LEGISLATIVE UPDATE – WHAT’S GOING ON BESIDES CORONAVIRUS

Posted On June 26, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

June 26, 2020

 

Seems like in the past several weeks this blog has been consumed by COVID-19 news – almost every day, at some points.  And before that, it was mostly paid family and medical leave.  Well, the world isn’t all COVID-19 and PFML so we thought we’d take a look at the bigger picture of legislative activity throughout the country. 

At Matrix we track LOTS of pending legislation; currently, we have almost 600 bills on OUR radar.  Many of these were introduced in early 2020 and have seen no activity since COVID-19 took over our lives.  So in order to bring this down to a manageable size, we are focusing here on bills of interest that (1) relate to leave, accommodations, pregnancy, or COVID-19; and (2) have progressed in the applicable legislature in the past few weeks. 

This information is current as of 6/25/2020.

COVID-19 and PFML

There are still bits of COVID and PFML legislative news.  See the blurbs below on Rhode Island and Virginia for some PFML developments; and District of Columbia (an emergency bill already enacted), Massachusetts, Washington, and the U.S. for COVID updates.  No other trends going on that we can see except both California and Massachusetts have introduced bills for bereavement leave.

Passed legislation               

Oh, and one more thing.  Remember that a few previously-passed laws go into effect soon: 

  • The increase in New Jersey Family Leave Insurance benefits from 6 weeks to 12 weeks is effective July 1.
    See our blog post here.
  • The increases in California Paid Family Leave and San Francisco Paid Parental Leave benefits, each going
    from 6 to 8 weeks, are also effective July 1.See our blog post here.
  • Illinois’s School Visitation leave (provides up to 8 hours per school year for school conferences) adds new
    leave reasons relating to a parent’s need for time off due to academic and behavioral issues.
    This is effective August 1, 2020 – helpful if any schools return to in-person education, I guess!

Now, let’s take a cruise together to see what’s happening in your state:

 

CALIFORNIA:      CA A 2399

  • Introduced:           02/28/2020
  • Status:                   05/26/2020 – Passed Assembly, to Senate
  • Subject:                 Amends CA Paid Family Leave law
  • Provisions:
    • For purposes of military exigency leaves under Paid Family Leave, revises definitions of “care recipient,”
      “care provider,” and “family care leave”
  • Proposed effective date:01/01/2021

CALIFORNIA:      CA S 1383

  • Introduced:           02/21/2020
  • Status:                   06/09/2020 – In Senate Committee on Appropriations: To Suspense File
  • Subject:                 Amends CA Family-School Partnership Act
  • Provisions:
    • Removes the employer size limitation of 25 or more employees in one worksite
    • Clarifies that leave to address a child care provider or school emergency includes a school closure
      due to a federal, state, or local government declaration of a state of emergency
    • Removes the limitation of 40 hours per year for leave due to a child care provider or school emergency
    • Leave to enroll a child in school or a child care facility and to attend school activities remains limited to
      40 hours per year and 8 hours per calendar month
  • Proposed effective date:01/01/2021

 

CALIFORNIA:      CA A 2992

  • Introduced:           02/21/2020
  • Status:                   06/11/2020 Passed Assembly; to Senate
  • Subject:                 Amends laws relating to leave for victims of domestic violence, stalking, and sexual assault
  • Provisions:
    • Expands leave of absence and other protections to include victims of a crime or that caused physical injury
      or that caused mental injury and a threat of physical injury.
  • Proposed effective date:01/01/2021

 

CALIFORNIA:      CA A 2999

  • Introduced:            02/21/2020
  • Status:                    06/10/2020 – Passed Assembly; to Senate
  • Subject:                 Bereavement leave
  • Provisions:
    • Requires employers to provide up to 10 business days of unpaid bereavement leave due to loss
      of a family member (parent, child, spouse, domestic partner, sibling, grandparent, grandchild); leave
      need not be taken consecutively;
      must be used within 3 months of date of death
  • Proposed effective date:01/01/2021

 

COLORADO:       CO S 205 

  • Introduced:           05/26/2020
  • Status:                   06/11/2020 – In House, to second reading
  • Subject:                 “Healthy Families and Workplaces Act” – creates paid sick and safe leave law
  • Provisions:
    • Requires employers to provide up to 48 hours of paid leave per year to employees for the following reasons:
    • Employee’s or a family member’s medical needs
    • Employee or a family member is a victim of domestic abuse, sexual assault, or harassment
    • Closure of a child’s school orplace of care, or the employee’s place of business, due to a public health
      emergency
    • Provides an additional 14 days of paid sick leave (up to 80 hours) due to a public health emergency for
      leave reasons similar to the Families first Coronavirus Response Act
  • Proposed effective date:
    • Paid sick &safe leave – 01/01/2021
    • Public health emergency leave – upon passage through 12/31/2020

 

DISTRICT OF COLUMBIA               DC B 757 and DC B 759

  • Introduced:           05/18/2020
  • Status:                   Enacted – Emergency Law – Signed by Mayor
  • Subject:                 Amends DC FMLA and DC Accrued Sick and Safe Leave Act
  • Provisions:
    • Adds DC FMLA leave for quarantine, caring for family member with COVID-19, or school closures;
      applies to all employers regardless of size; employee eligibility is 30 days; included in DC FMLA total
      16-week entitlement
    • Adds 2 weeks/80 hours paid sick leave for same reasons as FFCRA EPSL; employee eligibility is 15 days;
      applies to employers with 50-499 employees (not a health care provider); payments are deducted from
      employee entitlement to FFCRA or company policy paid leave
  • Effective date:
    • DC B 757 & 759: In effect immediately, through 09/06/2020
    • NOTE:DC B 758:Identical. 758 is pending as a “temporary bill,” so if it passes will go into effect following
      a 30-day congressional review and then remain in effect for 225 days.

 

DISTRICT OF COLUMBIA:              DC B 734

  • Introduced:           05/21/2020
  • Status:                   05/21/2020 – ENACTED
    • TEMP LAW Signed by Mayor 05/21/2020; pending 30-day Congressional review period
  • Subject:                 Amends DC Accrued Sick and Safe Leave Act to provide COVID-19-related leave
  • Provisions:
    • Adds 2 weeks/80 hours paid sick leave for same reasons as FFCRA EPSL; employee eligibility is 15 days;
      applies to employers with 50-499 employees (not a health care provider); payments are deducted from
      employee entitlement to FFCRA or company policy paid leave
  • Effective date:30 days after Mayor’s signature (06/20/2020) if no Congressional action – but may
    cover leaves starting with public emergency declared on 03/11/2020; expires 225 days after going into effect

 

ILLINOIS:                              IL H 4871

  • Introduced:           02/11/2020
  • Status:                   03/05/2020 – In House Committee on Labor & Commerce: To Subcommittee on Business
    and Industry Regulations
  • Subject:                 Amends Victims’ Economic Security and Safety Act
  • Provisions:
    • Adds protections for victims gender violence (violence based at least in part on individual’s actual
      or perceived gender)
  • Proposed effective date:If passed before July 1, 2020, effective date is January 1, 2021; if passed July 1, 2020,
    or after, effective date is June 1, 2021

 

MASSACHUSETTS:           MA S 2713

  • Introduced:           05/21/2020
  • Status:                   05/21/20 – To Senate Ways & Means Committee
  • Subject:                 Bereavement leave
  • Provisions:
    • Leave up to 10 business days per 12-month period to grieve or make arrangements due to the death of a
      family member (child, parent, guardian, spouse, or person in a substantive dating or
      engagement relationship who lived with the employee);
      • Must be taken within 30 days of employee’s notice of death
      • Covers employers with 25 or more employees in Massachusetts
  • Proposed effective date:01/01/2021

 

MASSACHUSETTS:           MA H 4566

  • Introduced:           03/12/2020
  • Status:                   06/22/2020 – To House Ways & Means Committee
  • Subject:                 Employment protections for contract workers subject to abuse
  • Provisions:
    • Provides up to 15 work days of leave in any 12-month period to contract workers (not employees)
      who are victims of abuse (including domestic violence, sexual assault, stalking, and kidnapping)
      for numerous related reasons, including medical care, victim services or legal counseling, court appearances,
      relocation, etc.
  • Proposed effective date:90 days after approval

 

MASSACHUSETTS:           MA H 4738

  • Introduced:           05/14/2020
  • Status:                   05/22/2020: Filed as House Docket 5071
  • Subject:                 Provides workplace procedures for manufacturing and factory workers
  • Provisions:
    • Provides up to 14 days of paid sick leave for manufacturing and factory workers who self-report potential
      COVID-19 symptoms or close contact, even if testing availability is limited or workers are awaiting result
    • Includes other workplace safety procedures related to COVID-19
  • Proposed effective date:90 days after approval
NEW HAMPSHIRE:          NH S 759

 

  • Introduced:           02/13/2020
  • Status:                   03/12/2020: Passed Senate; to House
  • Subject:                  Reasonable Accommodations for Pregnant Employees
  • Summary:
    • Requires an employer to provide reasonable accommodations to an employee related to the employee's
      pregnancy or childbirth and makes the failure to provide such accommodations an unlawful discriminatory
      practice
  • Proposed Effective Date:90 days after passage

 

NEW YORK:                        NY A 10466/NY S 8292

  • Introduced:           05/22/2020
  • Status:                   05/24/2020 – amended in Assembly Committee on Labor
  • Subject:                 Amends NY paid sick/quarantine leave law related to COVID-19
  • Provisions:
    • Adds coverage for individuals subject to quarantine who voluntarily participate in a precautionary quarantine
      or pursuant to a health care provider’s recommendation
    • Makes paid benefits available “in each instance” the employee meets the qualifications for
      quarantine or isolation due to COVID-19 under the act
  • Proposed effective date:Immediately upon passage

 

RHODE ISLAND:                RI S 2831

  • Introduced:           03/12/2020
  • Status:                   03/12/2020 – to Senate Committee on Labor
  • Subject:                 Temporary Caregiver Insurance Benefits
  • Provisions:
    • Increases TCI benefits per year from 4 weeks to 6 weeks (effective 01/01/2021)
      and 8 weeks (effective 01/01/2022)
  • Proposed effective date:01/01/2021 and 01/01/2022
TENNESSEE:                        TN S 2520 (same as TN H 2708)

 

  • Introduced:           02/05/2020
  • Status:                   06/11/2020 – to Governor
  • Subject:                 Tennessee Pregnant Workers Fairness Act
  • Provisions:
    • Requires employers to provide workplace accommodations to employees for medical needs
      arising from pregnancy, childbirth, or related conditions; prohibits employer from requiting employee to take
      leave if a workplace
      accommodation is available and won’t impose an undue hardship
  • Proposed effective date:07/01/2020

 

UNITED STATES:               US H 6800

  • Introduced:           05/15/2020
  • Status:                   06/01/2020 – passed House; second reading in Senate
  • Subject:                 Amendments to Families First Coronavirus Response Act
  • Provisions:
    • Numerous expansions of existing FFCRA including:
      • Changing expiration date to 12/31/2021
      • Changing employer coverage to all employers with 1 or more employees
      • Expanding leave reasons under Emergency FMLA to include same leave reasons as under Emergency
        Paid Sick Leave Act
      • Increasing cap for EFML benefits to $12,000
      • Providing expansive definitions of “parent” and ”family member”
      • Creating a separate 12-week bank of leave entitlement for EFMLA
      • Creating job restoration rights to same or equivalent position following EPSL
  • Proposed effective date:Not stated

 

VIRGINIA:                           VA H 30

  • Introduced:           01/08/2020
  • Status:                   Enacted 05/21/2020
  • Subject:                 Paid family and Medical Leave
  • Provisions:
    • Requires Chief Workforce Development Advisor and Secretary of Commerce and Trade to conduct a
      study and deliver a report to Governor by September 30, 2020, regarding development, implementation,
      and costs of a statewide PFML program for all employers in VA
  • Effective date:July 1, 2020

 

WASHINGTON:                 PROCLAMATION 20-46.1

  • Introduced:           06/09/2020
  • Status:                   Signed by Governor 06/9/2020
  • Subject:                 Protections for workers with high risk of COVID-19 complications per CDC guidelines
  • Provisions:
    • Continues provisions of Proclamation 20-46 “ . . . to prevent all employers, public or private, from failing to
      provide accommodation to high-risk workers, as defined by the Centers for Disease control and Prevention,
      that protects them from risk of exposure to the COVID-19 disease on the job. If an employer determines
      that alternative work arrangements are not feasible, the employer is prohibited from failing to permit
      an employee to utilize all available accrued leave options free from risk of adverse employment action.”
  • Effective date: Effective immediately, through 08/01/2020

Whew! That was a ride, wasn’t it? Don’t worry, there’s a lot going on but you don’t need to keep track of every single thing because, frankly, you have us! So sit back, pour a cold one and enjoy the summer in Future-Post-COVID World, and let us keep you informed and prepared.

WRANGLING ALL THAT COVID-19 NEWS – THE LAST (NOPE…) WE MEAN NEXT ROUND-UP

Posted On April 29, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Armando Rodriguez, JD - Law Clerk, Compliance And Legal Department

April 29, 2020

 

Cowboy Radar

COVID news just keeps coming. In our last Roundup we covered the DOL’s latest FFCRA Q&As, USERRA and COVID-19, and orders from the governors of California and Washington. Today we saddle up with:

  • More ADA guidance from the EEOC
  • OSHA – employer obligations to provide a safe workplace
  • COVID goes to court
  • COVID in the city
  • Colorado joins the rodeo

More ADA Guidance from the EEOC

As we previously reported here and here, the EEOC offers employers assistance regarding the COVID-19 pandemic and compliance with the Americans with Disabilities Act in its document What You Should Know About COVID-19 and the ADA. The agency has lately added more questions and answers to the guidance. In short, all the usual ADA rules and requirements continue to apply but they may take on a new hue in a request related to COVID-19.

Here are some of the key takeaways, but be sure to consult the full document – this is a summary and the EEOC has much more info for you!

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? 4/23/20

Yes. Employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. However, employers should ensure that the tests are accurate and reliable and should still require – to the greatest extent possible – that employees admitted to the workplace observe infection control practices to prevent transmission of the virus. (And see the OSHA segment below.)

D.6. [See also D.5] During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed?  (4/17/20)

Yes, even during COVID days, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee, now and in any ADA case, may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).  

D.7. If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? (4/17/20)

Yes. Employers may choose to forgo or shorten the “interactive process” and grant the request. In addition, employers may wish to set an end date for an accommodation expected to be temporary or approve it on a trial basis. This may be pertinent while awaiting medical documentation in order to allow an accommodation that provides protection due to an employee’s heightened risk due to the pandemic. If circumstances change the employer should consider an extension of a temporary accommodation or whether a different accommodation is needed.

D.10. and D.11. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” or “significant expense during the COVID-19 pandemic? (4/17/20)

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. Examples include increased difficulty due to the pandemic in obtaining special equipment, providing temporary assignments, or removing marginal functions.

As to “significant expense,” the employer can consider sudden loss of some or all of an its income stream because of this pandemic and when current restrictions on an employer’s operations may be lifted. An employer cannot simply reject any accommodation that costs money but must weigh the cost of an accommodation against its current budget and current constraints created by this pandemic. Even under current circumstances, there may be many no-cost or very low-cost accommodations.

If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems. 

D.12. Does the ADA apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC?

Yes. All employees continue to be covered under the ADA and employers must consider accommodation requests during the pandemic, engage in the interactive process, and provide an effective reasonable accommodation if it doesn’t pose an undue hardship.

Coronavirus Goes to Court

The first known COVID-19 lawsuit has hit the courts! (Can a Movie-of-the-Week be far behind?) Plaintiff Amy Reggio lives in Dallas County, TX. According to the complaint, Dallas County Judge Clay Jenkins, who is in charge of Dallas County’s coronavirus response, issued orders requiring all individuals anywhere in Dallas County to “shelter in place.” Reggio worked as general counsel for a real estate development and investment firm which, she alleges, is not an “essential business” under the Dallas County stay-at-home order. Reggio informed her boss Mark Tekin of the order and of her inability to leave home and go to work as a result. Reggio told Tekin she could perform all of her job duties from home, but claims Tekin said “working from home did not work for him and it would not be allowed or considered.” Reggio explained to Tekin that if she violated the Dallas County order she could be subject to criminal prosecution, including imprisonment. Tekin terminated Reggio on March 27 when she continued to refuse to violate the Dallas County order and go to work.

Reggio’s claim is based on a legal theory known as “public policy wrongful discharge.” An employee may assert this claim when (1) her employer required her to commit an illegal act that carries criminal penalties; (2) the employee refused to engage in the illegality; (3) the employee was discharged by employer; and (4) the sole reason for the employee’s discharge was her refusal to commit the unlawful act. Reggio’s allegations check all four of these boxes, so game on! She is asking for $1 million in damages, include lost wages and benefits, other compensatory damages, and punitive damages. It’s very early yet in this litigation but my bets are on Reggio and a quick settlement – although probably not a million bucks.

The case is Reggio v. Tekin & Assoc., LLC (Dallas County Court, Texas No. CC-20-01986 B).

Lessons for employers. These tough times call for new ways of doing things. Employers need to be flexible and approach difficult situations with an open mind. Remember, special measures imposed as a result of COVID-19 are temporary, so allowing something that is not usually done can also be temporary. This was not a situation where the employee, on her own, decided not to go to work because she was uncomfortable or concerned about being exposed to the virus. In that case the employer might be able to require the employee come to work, but it needs to take appropriate measures in the workplace to ensure a safe environment – and for that issue, read on!

OSHA, COVID-19, and the Employer’s Obligation to Provide a Safe Workplace

As we look forward to a return to the usual workplace and routines, understanding an employer’s OSHA obligations with respect to COVID-19 is especially important. Employers are required to provide a safe workplace and appropriate safety equipment for workers. Employers outside of a manufacturing, processing, or other heavy industry may not regularly think about OSHA requirements. The occasional office paper cut just doesn’t stir much concern.

But now we are in COVID-land. The federal Occupational Safety and Health Administration administers laws that regulate worker safety, which will take on new significance as employees go back to the office. Two provisions of the Occupational Safety and Health Act are particularly applicable to COVID-19 in the workplace:

The General Duty Clause, Section 5(a)(1) requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

OSHA’s Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), requires using gloves, eye and face protection, and respiratory protection when job hazards warrant it.

So, new measures like spacing of desks, ample supplies of hand sanitizers and wipes, and limitations on use of common spaces and facilities may become necessary to fulfill an employer’s OSHA obligations. OSHA recently issued a booklet, Guidance on Preparing Workplaces for COVID-19. Recommendations include the now-familiar handwashing and covering coughs and sneezes, but also an important reminder that employees should not use each other’s workspace, telephone, and other work tools and equipment. You can find more information at the OSHA COVID-19 website, and there are loads of on line resources with ideas.  

In addition, states may have their own workplace safety laws and regulations. There are twenty-eight OSHA-approved State Plans, operating state-wide occupational safety and health programs. State Plans are required to have standards and enforcement programs that are at least as effective as OSHA’s and may have different or more stringent requirements.

In these days of increasing work from home, there is one bit of good news: OSHA will not conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees. For more information see OSHA’s Directive on Home-Based Worksites.

As we move toward returning employees to the workplace, employers should develop a plan for what that will look like. Just be safe and be smart.

COVID in the City

OK, that doesn’t have the same ring as that TV show title – and it’s not nearly as much fun. Still, several cities are making news with their very own COVID-19 leave of absence laws. California seems to be the hotbed of such activity (Who saw that coming?). These COVID-19 ordinances vary by city (of course) but most have some common features:

  • Employer coverage picks up where FFCRA left off – most apply to employers with 500 or more employees.
  • Leave reasons mimic FFCRA, although some add new leave reasons as well, such as closure of a family
    member’s senior care facility or if the employee is age 65 or older or has an underlying high-risk
    health condition
  • Amount of paid sick leave also mimics FFCRA, with 80 hours of paid leave for full-time employees and
    the equivalent of two weeks’ pay for part-time employees, often capped at $511 per day or $5,110
    total per employee.
  • Health care workers are often exempted, at least as to leave for any reason other than their own
    COVID-19 diagnosis or quarantine.

San Francisco’s Public Health Emergency Leave Ordinance is in effect from April 17 through June 16, expiring on June 17, 2020 or when the Public Health Emergency is terminated, whichever is first.  Guidance from the Office of Labor Standards Enforcement is available here.

Los Angeles’s ordinance for Supplemental Paid Sick Leave has been superseded by an Emergency Order signed by Mayor Garcetti, cutting back on the scope of the ordinance. The Emergency Order will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

San Jose’s Urgency Ordinance providing temporary paid sick leave for COVID-19-related reasons is in effect from April 7 through December 31, 2020. Guidance and additional resources from the San Jose Office of Equality are available here.

Remember that many municipalities (and states) have existing paid sick leave laws that are likely to cover a variety of COVID-related needs for time off. My go-to resource is A Better Balance for a chart of paid sick leave laws across the country.

Colorado Joins the Rodeo

Colorado originally passed its Health Emergency Leave with Pay (Nominee for Best Acronym in a COVID-related program: HELP) rules on March 11 but has since significantly increased the scope of industries covered and the duration of paid leave. The rules are effective for 30 days after adoption (presently through May 27) or the duration of the State of Disaster Emergency declare by the Colorado governor, but with a maximum of 120 days after April 27. Including amendments adopted through April 27, here’s what the rules now provide:

All employees of a covered industry and working in a covered position are eligible for HELP. (Heehee, that totally works in a sentence! Good job, Colorado!)

Covered employers include those engaged in, or employing workers in, numerous industries, with no employer size limitations (coverage was effective as of March 11 unless a different date is indicated). Examples: leisure and hospitality, retail, real estate, office work, elective health services, personal care services, food and beverage manufacturing and services, education, and various elder or community care services. For details see the Colorado HELP website.

Paid leave is available for up to two weeks, with a maximum of 80 hours. Pay is at 2/3 of the employee’s usual rate, with no dollar caps. Paid sick leave ends following certain periods of being symptom free.

HELP provides leave for only one reason, to an employee:

  • with flu-like or respiratory illness symptoms and
  • who is (1) being tested for COVID-19 or (2) under instructions from a health care provider or
    authorized government official to quarantine or isolate due to a risk of having COVID-19.
A employer who already provides as much paid sick leave as required by the rules is excused from compliance. An employer who provides less paid sick leave than required by the rules must provide additional paid sick leave up to the amount required by HELP.

However, if an employee has exhausted all paid sick leave allotted by the employer, then the employer must provide additional paid sick leave up to the amount required by HELP.

The employer can require documentation to support the leave but with certain limitations:

  • Documentation can be required only after the employee’s return from leave, not as a precondition
    of taking or remaining on leave. An employee may not be terminated for failure to provide
    documentation during the illness.
  • If documentation is not available from a health care provider or the provider of the employee’s
    COVID-19 test, the employer must accept a written statement from the employee providing the
    pertinent information.

In an odd provision that is likely to give small employers heartburn, the rules provide, “To the extent feasible, employees and employers should comply with the procedures of the federal Family [and] Medical Leave Act (“FMLA”) to pursue and provide paid sick leave under these rules . . . ” This leaves a whole lot of open range as to exactly what that means and to what extent it is mandatory.

Employees must provide advance notice of the need for leave as soon as possible, unless they are too ill to communicate, and notice within 24 hours of getting a COVID-19 test or receiving instructions to quarantine or isolate.

Additional information is available on the Colorado HELP website.

Just When You Thought It was Safe: COVID Webinar II: The Revenge

Hopefully you joined my Reliance Standard colleague Karen Joseph a couple weeks ago for our webinar on COVID related federal and state leave legislation and how to apply it. If you didn’t, or even if you did and you want to prepare for the follow-up, you can access the slides as well as the recording. And while it’s no Season 3 of Ozark, I would say it’s required if you want to join us for the sequel:

On Thursday, May 7 at 2 PM Eastern, Karen and I will get back in that saddle and peel back some of these new developments at the national (OSHA), state and even local levels – plus we’ll incorporate some of your awesome questions from the first round. Plan to attend! Click here to register. Once you see the screen pop up with your name, go ahead and close the box: We will email you a confirmation before the event. (If you don’t get your email confirmation, note the date and time, because the link to join is the same as the registration link.)

See you there!

WHAT ABOUT ME? THE PLIGHT OF THE 500+ EMPLOYER GROUP

Posted On April 14, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

April 14, 2020

 

FFCRA

At Matrix and Reliance Standard we receive questions about COVID-19-related issues daily – no, hourly. Since the passage of the Families First Coronavirus Response Act (FFCRA), many of these questions have revolved around a big  issue for big(ger) employers: What about companies that have 500 or more employees? These larger employers are not covered by the Emergency Paid Sick Leave Act (EPSL) or Emergency Family and Medical Leave Expansion Act (EFML) provisions of FFCRA. So what does apply and what can/should a large employer do?

Let’s take on that topic now. 

On April 9 Matrix and our sister company Reliance Standard Life Insurance presented a webinar on current
federal and state COVID-19-related legislation. I was joined by my RSL colleagues Karen Joseph and Tim Suchecki. We reviewed:

    • The Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave
      Expansion Act (EFML), both part of the
      FFCRA
    • State paid leave responses to COVID-19
      (including New York, of course)
    • Benefits and leave scenarios in various states
      that have state-mandated paid family and/or
      paid disability programs

You can obtain a copy of our presentation deck  here, and listen to a recording of the  session here.

My company has more than 500 employees. Does the “regular” FMLA apply to COVID-19?

Yes! The regular FMLA may come into play if an employee or employee’s family member is experiencing COVID-19 symptoms. BUT, the individual’s medical condition still must meet one of the FMLA definitions “serious health condition.A COVID-19 diagnosis, in and of itself, does not do this. Some individuals who have COVID-19 are asymptomatic or have very mild symptoms that will not rise to the level of a serious health condition.

Two specific definitions of serious health condition may be applicable here (29 C.F.R. §§ 113-115):

  • Inpatient care (an overnight stay in a hospital, hospice, or residential medical care facility plus
    any subsequent
    period of incapacity or treatment); or
  • Incapacity of more than 3 consecutive, full calendar days, that also involves 2 or more in-person
    treatments by a health care provider or 1 in-person treatment followed by a regimen of
    continuing care
    .

The FFCRA made no changes whatsoever to the rules and procedures for regular FMLA claims. Despite the difficulty in getting an in-person medical appointment, an employer may still require in-person treatment by a health care provider and a written certification. Employers do have the ability to waive this requirement and accept a certification following a telemedicine appointment or waive the certification requirement altogether. Employers should consult with their legal counsel on whether, in that case, the employer should take the same approach to certification requirements for all serious health conditions, not just COVID-19 claims. Maybe this makes sense, as employees will have an even tougher time get an appointment and medical certification for non-coronavirus health conditions.

All other regular FMLA rules also continue to apply, including employee eligibility, total 12-week entitlement, required employer and employee notices, and so on.

My Company has more than 500 employees. Should we provide EPSL and EFML benefits to our employees?

Employers need to approach this decision with eyes wide open. If an employer with 500 or more employees elects to provide the EPSL and/or EFML benefits to its employees, there are two key things to understand:

  1. EFMLA is available when an employee’s child’s school or daycare has closed, or a day care
    provider is unavailable, due to COVID-19.
    This leave counts toward an employee’s 12-week
    FMLA
    entitlement per 12-month period. For employers with 500+ employees, any time
    taken by an employee that fits the parameters of EFMLA is not FMLA leave and cannot be
    counted toward the employee’s 12
    weeks of FMLA. Doing so could be considered
    interference with the employee’s FMLA rights by charging the employee’s FMLA bank
    with leave that is not covered by the FMLA or EFML.
  2. Paid leave provided to non-covered employees for EPSL or EFML reasons will not qualify for
    the 100% tax credit available for wage and related payments made pursuant to the acts.

With those two factors in mind, employers with 500 or more employees can certainly offer the same type of benefits to its employees as a new company policy or benefit. And, any employer can allow (but often cannot require!) employees to use existing company-paid sick leave, PTO, and other paid leave benefits for COVID-19-related reasons not normally covered, such as quarantines or school closures.

My Company has more than 500 employees. Do we need to post notice of the EPSL and EFML?

No. You are not a covered employer so no need to put up the DOL-approved poster (available here in several languages for those who DO need to post or share electronically!). In fact, posting the notice if your company is not covered might just add confusion to an already confusing situation for employees.

My business is made up of multiple companies, some over and some under 500 employees. Should we provide EPSL and EFML benefits to ALL employees?

The previous question provides the answer here: be aware of the two key factors in making your decision. But there is an additional consideration: If you provide EFML benefits to the employees of the 500+ companies you are in effect giving those employees greater benefits than the employees of smaller companies. That’s because, for the employees of the larger companies, the paid time off cannot count toward the employee’s FMLA 12-week entitlement, but such usage for an employee of a smaller company does count toward FMLA. So the employees of the larger companies may be able to take more leave in a 12-month period, paid or unpaid, than employees of the smaller companies. Be ready for employee dissatisfaction with perceived inequities in benefits among the companies!

My company has ABOUT 500 employees, depending on the day. Should we provide EPSL and EFML benefits to our employees regardless of each day’s headcount?

Whether an employer has fewer than 500 employees is determined as of the first day of leave of EACH employee requesting leave. That means, for example, that an employer with 510 employees today does not have to grant leaves that will start today; but a week later, if the employee headcount drops to 495, the employer does have to grant leaves requested to start that day. (This may include leave for the employees denied today.)

In light of this moving target it may be tempting to simply grant the paid leave for all employees regardless of a specific day’s employee count. But any EPSL or EFML benefits provided while the company has 500 or more employees on the leave start date won’t count toward the employer’s paid leave obligations to an employee for the leaves that ARE covered, won’t qualify for the tax credits, and can’t be counted toward the employee’s FMLA entitlement. Feeling like a broken record here, but there are so many permutations on that 500 rule!

My business is made up of several related entities. Should we provide EPSL and EFML benefits to our employees?

Generally, each legal entity, such as a corporation, is a separate employer for purposes of counting employees for EFMLA (and FMLA) coverage. However, in some cases related entities may constitute a single employer and therefore all employees of the related entities are counted to determine the under/over 500 count.

Here is guidance from the FMLA regulations, which are incorporated into the EFML regulations:

A corporation is a single employer rather than its separate establishments or divisions. Where one corporation has an ownership interest in another corporation, it is a separate employer unless it meets the “integrated employertest. Where this test is met, the employees of all entities making up the integrated employer will be counted in determining employer coverage and employee eligibility. A determination of whether or not separate entities are an integrated employer is not determined by the application of any single criterion, but rather the entire relationship is to be reviewed in its totality. Factors considered in determining whether two or more entities are an integrated employer include:

(i) Common management;

(ii) Interrelation between operations;

(iii) Centralized control of labor relations; and

(iv) Degree of common ownership/financial control.

(29 C.F.R. §§ 825.104 and § 826.40)

This assessment is important because, if your company is part of an integrated employer with a total of 500 or more employees, any benefits provided cannot be counted toward an employee’s FMLA usage and won’t qualify for tax credits, as discussed above. On the other hand, if your under-500 corporate entity is affiliated with other companies but does not satisfy the integrated employer test you may be covered by FFCRA without realizing it.

SAFE BET: If you have questions about whether your company is part of an integrated employer, consult your legal counsel. The determination depends on a legal analysis your company’s specific facts and circumstances.

My company usually has more than 500 employees, but we have had to furlough hundreds and now have fewer than 500 active employees. Are we covered by FFCRA?

Yes. Those remaining active employees are entitled to EPSL or EFML paid benefits and job-protected leave. Employees on furlough or laid off are not counted toward the company’s number of employees. Likewise, they are not entitled to FFCRA benefits. However, furloughed or laid off employees may be entitled to unemployment benefits, which vary from state to state.

My company has more than 500 employees. Are there any other COVID-19-related laws we need to comply with?

Yes. Specifically, New York passed a law, effective March 18, 2020, which provides paid leave to employees of all employers when the employee or a minor dependent child is subject to an order of quarantine or isolation. The type and amount of paid benefits available to employees depends on employer size. Employers with 100 or more employees must provide 14 calendar days of paid leave due to an employee or minor child quarantine (that is, pay for the number of days the employee would normally work in a 14-day period). For details on the New York law, check out our New York FAQs and our webinar presentation  and recording.

In states with paid family leave and/or paid disability benefits, many changes have been made to afford benefits to employees for COVID19-related leaves. These too are covered in our recent COVID-19 webinar.

Matrix can help!  

Look, there are obviously a number of factors in play surrounding the recent COVID-19 laws, particularly as they relate to providing benefits voluntarily to companies with more than 500 employees. It’s a sad, but unavoidable truth that well-meaning employers must nonetheless be cognizant of the unintended consequences that could result without careful examination of ALL the laws that apply to them. We are here to offer information and illumination – that’s our jam! But remember, consulting with legal counsel and a tax expert is always advisable if employers with over 500 employees choose to provide benefits more generous than those required under the law.

WHOOPEE! MORE FFCRA GUIDANCE! DOL ISSUES TEMPORARY REGULATIONS

Posted On April 03, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

April 03, 2020

 

Perhaps I shouldn’t be flippant, but seems like every other day brings more guidance from the U.S. Department of Labor on the new paid leave benefits available to many employees under the iStockFamilies First Coronavirus Response Act.  Oh, wait, it doesn’t just seem like every other day…!

But, the latest DOL offering – the FFCRA Temporary Regulations – is very important. In a mere 124 pages (in all fairness, double spaced) the DOL sets out its official interpretation of what is, by general consensus, a very confusing law. I have read the regulations and found some degree of clarity from them. Now it’s time to offer my learnings to you, my faithful readers.  Taking metaphorical pen in hand, I begin our journey:

 

 

 

 

 

 

Oh, sorry, I was daydreaming that I worked for a company with hundreds of employment lawyers, with whom I could share the load.

But wait – I don’t, but Jeff Nowak does!  So, my friends, rather than reinventing the wheel on a Friday evening in April, I am going to point you to Jeff’s blog FMLA Insights for his thoughtful analysis and summary of the FFCRA regulations.  Thank you, Jeff and colleagues!

But don’t think I have nothing to do now!  At Matrix, we are training our folks, creating new intake procedures and new forms, answering client questions (we get tons, and they get more granular every day!).  We are Mission-Ready to administer the expanded FMLA and all the new COVID-19-related state laws and regulations that are also coming at us fast and furious.  And the rest of Matrix’s compliance team is working to hold down the fort and handle all of our other compliance responsibilities. Even in these challenging times, we are committed to providing our clients with top notch leave, disability, and accommodations services in all regards.

And as a final note, in case you need a little light reading for the weekend, here are some links to a DOL COVID-19 webinar you might find useful – both for yourself and your employees:

DOL Webinar: The Families First Coronavirus Response Act (FFCRA)

DOL Webinar Slides (PDF)

AND THE BEAT GOES ON . . . IRS INFO ON THE COVID-19 TAX CREDIT; DOL ISSUES TEMPORARY REGULATIONS

Posted On April 02, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

April 02, 2020

 

And the beat goes on, the beat goes on
Drums keep pounding a rhythm to the brain
La de da de de, la de da de da*

Sonny & Cher

Bet that song will be in your brain all day now – you’re welcome! 


We are getting pounded daily with new guidance on the Families First Coronavirus Response Act (FFCRA).  Here’s the drumbeat from the last couple of days – FFCRA tax credits guidance and Department of Labor temporary regulations (124 pages!) explaining the Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave Expansion Act (EFMLA).  (For our prior COVID-19 posts you can just scroll down in this blog.  But remember, things keep changing so always look here for the latest!)

DOL Temporary FFCRA Regulations

I have to admit, I have not yet read all 124 pages of the temporary regulations and won’t try to summarize them yet.  That will be part of my fun weekend.  It will be an easy way to keep appropriate social distance!  But the regs have arrived and you can enjoy them yourself here.

COVID-19-Related Tax Credits

First, a refresher. The FFCRA is applicable to employers with fewer than 500 employees. The act requires covered employers to provide paid leave through two separate provisions: (i) the EPSL, which entitles workers to up to 80 hours of paid sick time when they are unable to work for certain reasons related to COVID-19, and (ii) the EFMLA, which entitles workers to certain paid family and medical leave when their child’s school is closed or daycare is unavailable due to COVID-19.

Covered employers can claim tax credits for wages paid as required by EPSL and EFMLA. These tax credits also include any qualified health plan expenses and the employer’s share of Medicare tax on the FFCRA wages paid.  Details on how to claim the tax credit are available in the IRS guidance.  Be sure to share it with your tax advisor (I’ll bet they already have it)!

Documentation is Really Important!  Kind employers may be inclined to take an employee’s word for the reason they need paid leave under EPSL and/or EFMLA, but doing so may be kissing the 100% tax credit goodbye. You can’t get the tax credit without some pretty detailed documentation.  The following information is found in Questions 44 and 45 of the IRS guidance:

For all paid leave reasons, the employee must make a WRITTEN request for paid leave that includes:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support
    for such reason; and
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

And:

In the case of a leave request based on a quarantine order or self-quarantine advice for the employee or a family member, the written statement from the employee should include:

  1. The name of the governmental entity ordering quarantine or the name of the health care professional
    advising self-quarantine; and,
  2. If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s
    name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the written statement from the employee should include:

  1. The name and age of the child (or children) to be cared for;
  2. The name of the school that has closed or place of care that is unavailable; and
  3. A representation that no other person will be providing care for the child during the period for which
    the employee is receiving family medical leave; and
  4. With respect to the employee’s inability to work or telework because of a need to provide care for a
    child older than fourteen during daylight hours, a statement that special circumstances exist requiring
    the employee to provide care.

In other words, an employee cannot get paid EPSL or EFMLA during a school closure or unavailability of day care due to COVID-19 if someone else is providing care to the child(ren) during the time for which the employee is claiming paid leave. Does this mean that if one parent is home due to a business closure, the other parent cannot take paid leave to care for the child?  It would seem so, and that seems fair. There is no guidance as to what would constitute special circumstances that make an employee unable to telework even though his children are over 14. Special needs come to mind. Or, “My child is a pyromaniac and must be watched at all times!” (Another song reference – any Def Leppard fans out there?)

And the beat goes on!  In addition to the above documentation, the employer must create and maintain records that include the following information:

  • Documentation to show how the employer determined the amount of EPSL an EFMLA wages paid to
    employees that are eligible for the credit, including records of work, telework and qualified sick leave
    and qualified family leave.
  • Documentation to show how the employer determined the amount of health plan expenses being claimed.
  • Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the
    employer submitted to the IRS.
  • Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted
    to the IRS (or, for employers that use third party payers to meet their employment tax obligations,
    records of information provided to the third party payer regarding the employer’s entitlement to the
    credit claimed on Form 941).

Matrix Can Help!

Where else can you get COVID-19 leave news, insightful interpretations and the occasional music throwback? Sure, everyone says “We’re all in this together,” but admit it – it’s more fun together with us. Stay informed, stay loose and reach out to your Matrix or Reliance Standard account manager for help making your program make sense. 

 

*The Beat Goes On written by Sonny Bono. © Warner Chappell Music, Inc.